DOCKET NO. 097-LH-0309
DALLASINDEPENDENTSCHOOL§BEFORE ROBERT C. HWANG
DISTRICT§
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v.§CERTIFIED HEARING EXAMINER
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WANDA CHARLES HENLEY§TEXAS EDUCATION AGENCY
RECOMMENDATION OF HEARING EXAMINER
Statement of the Case
Respondent, WANDA CHARLES HENLEY, appeals the decision of the Petitioner, the DALLASINDEPENDENTSCHOOL DISTRICT, to terminate her term contract of employment as a counselor. Notice of the proposed termination was given to Respondent by a letter dated March 3, 2009. Respondent requested a hearing pursuant to Chapter 21, Subpart F of the Texas Education Code and requested the assignment of an independent hearing examiner by the Texas Education Agency (‘TEA”). On March 20, 2009 the TEA appointed the undersigned hearing examiner to preside in this matter. The hearing in this matter was held before the hearing examiner in Dallas, Texas on June 10, 2009. Petitioner was represented by Claudine G. Jackson and Andrea S. Cottrell of Brackett & Ellis. Respondent was represented by Robert J. Wiley and Hanna E. Cummings of Rob Wiley, P.C.
Findings of Fact
After due consideration of the evidence and matters officially noticed, the following Findings of Fact have been proven by a preponderance of the evidence:
1. Wanda Charles-Henley (''Henley'') was a guidance counselor at T.G.TerryElementary School (“Terry”) in the DallasIndependentSchool District ("District") during the 2007-2008 and 2008-2009 school years.
2. By letter dated March 3, 2009, Petitioner notified Respondent of the board’s intent to terminate her employment for good cause for the following reasons:
A. Any act or conduct while at school, whether in or out of a classroom, which is either indecent, obscene, illegal, cruel, abusive, or is otherwise contrary to and inconsistent with the ordinary standards set by the performance and conduct of the other professional public employees of the District. (DF-Local #2)
B. Making, presenting, or using any record or document with knowledge of its being false and with the intent that it be taken as a genuine governmental record. (DF-Local #19).
C. The making or publishing of false, vicious, or malicious statements concerning any employee or supervisor of the District. (DF-Local #21)
D. Failure to meet acceptable standards of conduct for employees in like or similar positions, which would make retention of the employee detrimental to the best interests of the District. (DF-Local #25).
E. Employees who knowingly make false allegations shall be subject to discipline up to and including dismissal.
3. Respondent requested that the Commissioner of Education appoint a certified hearing examiner to preside over a hearing and this certified hearing examiner was appointed.
4. On June 13, 2008, Henley filed a Level I grievance against Principal Deborah Traylor
("Traylor"), alleging that Traylor harassed, retaliated, threatened, intimidated and belittled
Henley throughout the 2007-2008 school year. Tr. Page 29-30, Pet. Ex. 8.
5. On August 5, 2008, the Level I Grievance Hearing was held and the grievance was denied. During the hearing Henley alleged for the first time that Traylor caused TAKS test irregularities in March of 2008. Tr. Page 34.
6. Henley served as test coordinator at Terry for the 2006-2007 school year and portion of the 2007-2008 school year who was trained with testing procedures. Tr. Page 35-37.
7. On March 5, 2008 while the TAKS was being administered one of Henley’s student injured his hand in the restroom. Tr. Page. 38-39.
8. After the student injured his hand he returned to the classroom and answered a number of questions quickly and randomly, and finished the test. Tr. Page 77.
9. There were 35 or 40 questions on the TAKS test. Tr. Page 77.
10. Henley did not report any test irregularities allegedly caused by Traylor for more than five months.
11. On August 8, 2008, Henley sent a letter to Evelyn Reed, Director of State & National Assessment (Testing) with copies to Gilberto Gonzalez, Southwest Elementary Executive Director, Alliance AFT, and the Office of Professional Responsibility. Her letter alleged that (i) Traylor instructed her to void the student’s test booklet, (ii) Traylor instructed her to erase some of student’s answers, (iii) Traylor instructed the student to erase answers, and (iv) Traylor erased student’s answers. Pet. Ex. 1-B.
12. The Office of Professional Responsibility (“OPR”) initiated an investigation based on Henley’s letter. Due to test irregularities allegations, the student’s test booklet was sent to Texas Education Agency (“TEA”) for examination. Review of the student’s test booklet by TEA revealed eight erasures throughout the test. The state average is from three to five erasures. Of the eight erasures most were incorrect. Three were changed from incorrect to correct, one from correct to incorrect, and four from incorrect to incorrect. TEA concluded that there was no clear pattern of responses being erased by the principal. Pet. Ex. 1-K. The OPR reviewed TEA examination of test booklets, interviewed witnesses with written statements from each witness. The OPR concluded that Henley’s allegations of Traylor instructing Henley to erase the student’s TAKS test, directing the student to erase answers, and Traylor erasing the answers were unfounded. Pet. Ex. 1, 1-A to 1-Q.
Discussion
The TAKS test was administered on March 5, 2008 but the testing irregularities as Henley alleged was reported more than five months later. Respondent as a test coordinator was trained to report test irregularites immediately upon occurrence and not delay five months. Even on the Level I Grievance against Traylor, Respondent did not state in writing about the testing irregularities. Instead she alleged that Traylor harassed, retaliated, threatened, intimidated and belittled her. Her grievance was denied. Henley alleged first time the testing irregularties by Traylor during the hearing on August 5, 2008. Respondent stated that she did not turn in the student’s test booklet but another test coordinator stated that the student’s test booklet was turned in. Respondent stated that Traylor erased answers on the test booklet but examination by TEA revealed that all answers were completely filled in and no pattern of Traylor erasures were found by TEA. Henley’s allegations against Traylor has not been corroborated by any evidence.
Conclusions of Law
After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as the Hearing Examiner, I make the following conclusions of law:
1. The Hearing Examiner has jurisdiction of this subject matter pursuant to Chapter 21, Subchapter F, §21.251 of the Texas Education Code.
2. The District Board of Trustees may terminate a term contract and discharge a teacher at any time for good cause, as determined by the Board. Texas Education Code §21.211(a)(1)
3. “Good cause” is defined as, “the employee’s failure to perform the duties in the scope of employment that a person of ordinary prudence would have done under the same or similar circumstances. An employee’s act constitutes good cause for discharge if it is inconsistent with the continued existence of the employer-employee relationship.” Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 580 (Tex.App.– Houston [1st Dist.] 1992, no writ).
4. Petitioner has established, by a preponderance of the evidence, good cause for the termination of Respondent’s contract.
Recommendation
After due consideration of the evidence and matters officially noticed, and the foregoing Findings of Fact and Conclusions of Law, in my capacity as the Hearing Examiner, I respectfully RECOMMEND that the Board of Trustees of Dallas Independent School District adopt the foregoing Findings of Fact and Conclusions of Law and FURTHER RECOMMEND that Respondent’s employment with DISD be terminated.
SIGNED AND ISSUED this 24th day of June, 2009.
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ROBERT C. HWANG
CERTIFIED HEARING EXAMINER
Recommendation of Hearing Examiner – Docket No. 097-LH-0309 Page 1